Constitutions,ConstitutionalismandRuleofLawinMalaysia(rev Oct 2022)[Autosaved].pptx

THE FEDERAL
CONSTITUTION,
CONSTITUTIONALISM
AND RULE OF LAW IN
MALAYSIA
Emeritus Professor Datuk Dr Shad Saleem Faruqi
shad.saleem.faruqi@um.edu.my

CONSTITUTIONS
A Constitution is a foundational law: A Constitution is the
foundation of the legal order. It is the highest law of the
land, “the law of laws”, the grundnorm. A Constitution is the
political architect’s master plan for the nation. It is a body of
fundamental law that describes the manner in which the
state is organized, government carried on and justice
administered.
It creates and regulates the various branches of the state: At
the organizational level a Constitution creates the various
branches of the state; describes and delimits their powers
and functions; and prescribes rules about the relationship of
the branches with each other and with the citizen.

It assigns and locates power: At the political level, the
Constitution concerns itself with the location of authority in
the state. It allocates power. It tells us who can do what and
subject to what procedure
Protects human rights: In the area of human rights the
Constitution provides for a government sufficiently strong
and flexible to meet the needs of the nation, yet sufficiently
limited and just to protect the rights of citizens. It provides a
balance between society’s need for order and the
individual’s right to freedom. The might of the state and the
rights of the citizens are sought to be balanced. Controlling
the government without crippling is the aim of
constitutional and administrative law

It contains basic values: At the ideological level, the Constitution
supplies the core values - political, religious, moral, cultural or
economic – on which society is founded. Quite often these are
encapsulated in a stirring Preamble.
It is based on society’s needs: Constitutional law is silhouetted
against the backdrop of history, geography and economics.
More than most fields of law, it reflects the dreams and
demands, the values and vulnerabilities of the body politic. A
Constitution that will endure must not depart too far from the
volksgeist (spirit of the people). It must be autochthonous.

It consists of ideals: Though most Constitutions
are “autochthonous”, at the same time they are
idealistic, aspirational, transformative, and in extreme
cases, revolutionary. They contain the seeds of
change for a new and just social order. They
hitch themselves to the stars. They balance the
need for stability with the imperative of
change. They are prepared for the challenges
of tomorrow. They contain amendment procedures.

A Constitution fosters unity in diversity: In a fragmented and
ethnically divided society as Malaya was in 1957, and
Malaysia is still today, the Constitution must weld people
together into one common nationality.
Respects regional rights: In a federacy or a federation, if there
are regions, states or provinces that exhibit significant
differences from the rest of the country, then the
Constitution must maintain unity in diversity by granting
special autonomy to such regions as Quebec in Canada,
Kashmir in India (whose special status was recently revoked),
revoked), Aceh in Indonesia and Sabah and Sarawak in
Malaysia.

MANY FORMS
Constitutions can exist in many forms –
 written (enacted in a single document) or unwritten (found
in many treatises and laws as in the UK),
 secular or theocratic,
 republican or monarchical,
 democratic or authoritarian,
 federal or unitary,
 parliamentary or presidential, and
 rigid or flexible.

The Malaysian Constitution exhibits the following main
features:
A written Constitution: It is a written Constitution consisting
183 Articles and 13 Schedules. The constitutional charter is
backed by hundreds of statutes, precedents and constitutional
conventions.
A supreme law: It is the highest law of the land.
.

Islam: Islam is given an exalted position in the Constitution as
the religion of the federation. The Constitution assigns the
power to enact Muslim laws in 25 or so areas to the 13 State
Assemblies. In these prescribed areas, the Assemblies apply the
Syariah compulsorily to Muslims. Syariah courts exist and are
independent of the civil courts in matters within their
jurisdiction.
However, the provision for Islam does not make Malaysia a
theocracy. Our Constitution is neither theocratic nor fully
secular. As in Indonesia, we are governed by a supreme
Constitution. The Constitution is hybrid, mixed and recognises
legal pluralism.

Constitutional monarchy: Our Constitution
is monarchical. We have a King at the
federal level and hereditary Sultans in 9 out
of 13 regions.
However, the monarchs are not absolute
rulers but constitutional monarchs who
must act on advice except in a few
specifically allocated areas.

A federal Constitution: Our Constitution is
federal in that it divides legislative, executive,
judicial and financial powers between the
federal government and the 13 states. The
division of powers is heavily in favour of the
Centre.
However a unique feature is that the 13 States
of the Federation are not treated equally in the
conferment of powers. Sabah and Sarawak
enjoy far greater jurisdiction than the 11 West
Malaysian States.

Democratic: Our Constitution is democratic. It provides for human
rights, periodic elections and elected governments.
Parliamentary system: Our Constitution is parliamentary as
opposed to the American and Philippines presidential system.
Amendability: The Constitution is partly flexible (easy to amend)
and partly rigid (difficult to amend). (i)
Amendment of some parts requires a simple majority
(ii) Amendment of other provisions requires a special 2/3 majority
of the total membership.
(iii) Some amendments require the consent of bodies outside
Parliament (the COR and YDPN).

CONSTITUTIONALISM
“Constitutionalism” stands for some ideals of good
governance. It refers to institutions, doctrines,
principles, substantive rights and procedural
prescriptions that provide a bulwark against
oppression and tyranny.
The list of these rights and principles is dynamic
and includes the following 6 essential ideas:

1. There must be limits on government’s powers
Constitutionalism rejects unlimited state sovereignty of Hobbes
or Austin. It rejects an absolutist executive or an all-powerful
powerful supreme Parliament.
The limits on state power may be supplied by the Constitution,
by statutes or by unwritten conventions.
The limits can be substantive or procedural.
The Government’s authority to govern depends on its
observance of the limits on its powers. This is the essence of
the “social contract”.

2. There must be independent agencies to enforce limits on the
powers of officials
These agencies are the courts, Parliament, the Auditor General, the
Ombudsman, the Election Commission, the Human Rights
Commission or an independent public prosecutor. Note how
the courts in the USA developed the power of judicial review in
the case of Marbury v Madison.
3. There must be respect for human rights
The rights may be individual or collective.
The rights must include the “first generation” civil and political
rights; the “second generation” socio-economic rights; and the
“third generation” right to sustainable development.

 Of special interest to the Constitution are guarantees
for personal liberty, equality, property, free speech
and freedom of conscience.
 The rights of minorities are of special concern to
constitutional law.
 Though human rights cannot be absolute and the
government must have the power to limit them, the
power of the state must be restricted to the grounds
permitted by the Constitution.

4. Elected, Representative and Responsible
Government
Constitutionalism rests on a democratic electoral
system that produces an elected and
representative government that is responsible,
accountable and answerable to the people or to
the people’s representatives.
Note that a constitutional government must not
only be elected but must also be representative.

5. An Independent Judiciary
In a constitutional democracy the role of the
judiciary is to preserve, protect and defend
the Constitution, uphold human rights,
review exercise of executive discretion, and
resolve disputes among the various branches
of government, between the citizen and the
state and citizen and citizen.

6. Internalization of constitutional values
Internalization refers to a feeling of being
bound in the absence of sanctions. The rules
of the Constitution (whether written or
unwritten, legal or conventional, political or
moral) must be respected by the
government as well as the citizens, especially
the former.
 This feeling must extend to the letter as well
as the spirit of the law.

Without the above ideals or
arrangements the country may have a
Constitution but no constitutionalism.
Examples: Apartheid South Africa and
Nazi Germany.

THE RULE OF LAW
The rule of law is an ideal of good government and just
constitutional arrangements.
At its inception it merely implied a preference for law and order
over anarchy and strife. But over the years the concept has
acquired legal, political and economic implications.
Today it overlaps with many other venerated ideals like those of
limited government, constitutionalism, due process and just
legality.
Though a precise or comprehensive definition of the concept is
not possible, central ideas that are at the heart of this
dynamic ideal can be outlined.

1. Legality: There should be a government of laws, and
not the rule of arbitrary power by those who are high
and mighty. There must be supremacy of laws.
No person should be punished or made to suffer in body
or goods except for a distinct breach of law established
in the ordinary legal manner before the ordinary courts
(Dicey).
Government officials must show respect for the law and
must observe the limits on their power.

2. Just legality
 Adherence to the law by the state is necessary but not enough.
If the system of law is unjust and oppressive, adherence to it
can become an instrument of tyrannical rule.
 The rule of law insists on compliance with some substantive
human rights values. The law that reigns supreme must honour
and promote individual freedom and dignity.
 In this sense, the rule of law is different from rule by law. Rule of
of law expresses ideals about citizen-state relationships. The
law must provide safeguards for liberty, equality and dignity.

“Just legality” is promoted if –
 there are limits on the powers of the state to restrict
citizen’s rights;
 there are controls on executive discretion so that
discretionary authority does not degenerate into
arbitrariness.
 there are no backdated criminal laws; and
 democratic electoral procedures are provided for by
the law.

3. Impartial system of justice
To enforce the rule of law, there must be an
independent judiciary with the power to
enforce its verdicts without fear or favour. The
judiciary must be independent and free from
extraneous pressures. It must be invested with
all the necessary powers to interpret and
enforce the law and to keep public authorities
within the limits of their competence.

4. Socio-economic justice
 Food is as important as freedom, bread as
important as the ballot box. Legal
guarantees of human rights are not enough.
They must be accompanied by socio-
economic and educational measures so that
formal rights can find expression in reality
and the individual can realize his dignity.
 Human rights must function and be real.

 There must be vigorous state support for socio-
economic policies to help the weak, the
oppressed and the marginalised. The state must
be involved in social amelioration schemes to
bring welfare to those who, for whatever reason,
are unable to actualize their freedoms and rights.
The state must be committed to the welfare and
to the rights and dignity of all its citizens,
irrespective of race, religion, region or gender.

5. Effective government
The threat to the rule of law comes as much from abuse of
liberty as from abuse of power. The government must be
capable of enforcing law and order and ensuring socio-
economic and legal justice.
Citizens and citizen groups should show fidelity to the law. They
They should respect the results of the legal and electoral
processes in which they have participated. They should obey
first, criticize afterwards.
Crime should be controlled.

The state and the law should not be
powerless in the face of the extra legal
or illegal groups that wield immense
power. The challenge to the rule of
law from groups that constitute the
“deep state” or the “state within a
state” must be confronted.

Is a Rule of Law Emerging in
Malaysia?
The judiciary is in renaissance: It is asserting
its independence.
 It is boldly reviewing legislative and
executive actions on the litmus test of
unconstitutionality.
 Some judges are questioning ouster clauses
as unconstitutional on the ground that
ouster clauses are a violation of the court’s
judicial power.
 The basic structure doctrine is gaining a
foothold.

Human rights: Some judges are interpreting
human rights broadly and prismatically.
Administrative law is growing stronger: Some
judgments “constitutionalise” admin law issues.
See Thirunavukarasu A/L Angappan v Kerajaan
Malaysia (2022).
Nazrul Imran v Civil Service Commission [2021]
6 MLJ 750;

Reform of Parliament: Parliament has
undergone some reforms to its committee
system.
Electoral laws: The Undi 18 electoral law has
empowered the youth. Automatic registration
has enfranchised millions of people who had
failed to register.

 Our electoral democracy has survived 14 General Elections. By far and
large these elections have been peaceful (except for the violence in the
Klang Valley in 1969).
 The 2008 voter revolt against the ruling coalition and the Barisan
Nasional’s loss of power in 2008 in Selangor, Kedah, Kelantan, Perak
and Penang raised fears in some quarters of political instability but
kindled hope in others that a healthy two-party system may be
emerging.
 In the 2013 General Election the BN recaptured Kedah and Perak. But
the seeds of two rival, major political coalitions remain in place.
 The 2018 election pointed to the possibility of two major coalitions –
one based on race and the other on inter-ethnic cooperation. The 2018
election results confirmed this trend. But the euphoria lasted only two
years.

Peaceful social engineering: Another outstanding feature is the
peaceful and cooperative manner in which social engineering is
being accomplished in the country. Unlike some other societies
like Fiji, Kenya, Uganda and Zimbabwe (with a similar problem
of identification of race with economic function), the
Government did not expropriate the wealth of one community
to bestow it on another.
It embarked on a pragmatic expansion of opportunities to give
to every community its share of the pie. The ensuing policies
have bred elite corruption and nepotism but their formulation
was inspired by noble sentiments.

Female emancipation: A proud feature of our country is the emancipation of
women. In the workplace, in schools and in universities, women are easily
outnumbering men.
Moderate Islam: Malaysia as a Muslim country is (or was up to now), an
exemplar of a moderate, enlightened, progressive and tolerant society that
embraces modernity and democracy and yet accommodates the spiritual
view of life. Secularism and Islam co-exist in harmony and symbiosis.
Civilian control over the army: Malaysia has successfully kept the armed
forces under civilian control. There has been no attempted coup d’etat and
no “stern warnings” from military generals to the political executive.
Indeed the blessings of Allah on Malaysia are many. There is much in
Malaysia’s struggles and successes that is worthy of emulation by friends
and foes alike.

Challenges
Our constitutional journey has not always been smooth. A
fair number of monumental events tested the relevance
and the resilience of the Merdeka Constitution.
Malaya to Malaysia: The Federation of Malaya was significantly
transformed when it invited the largely non-Malay territories of
Sabah, Sarawak and Singapore to form the Federation of
Malaysia in 1963. This led to a confrontation with Indonesia and
an international dispute with the Philippines.
Singapore’s exit: In 1965 relations with Singapore broke down
and the territory was expelled from the Federation.

 Federal-state crises: In 1966, deteriorating relations between
Sarawak and the federal government led to the dismissal of
Chief Minister Stephen Kalong Ningkan and the proclamation
of a state of emergency in Sarawak. A similar emergency was
proclaimed in Kelantan in 1977.
 May 13, 1969: On 13 May 1969 racial tensions erupted into
serious riots in the Klang Valley, causing the loss of hundreds of
lives. A national emergency was declared. Parliament and the
State Assemblies were prorogued and democracy was
suspended for about 21 months.
 The breakdown of ethnic relations triggered massive re-
adjustments to the political, economic, educational and inter-
ethnic life of the country. Many legal and extra-legal changes to
constitutional arrangements were made. However, the “social
contract” between the communities was largely left untouched.

 Crisis with the Rulers: In 1983 and again in 1993, the country
reeled under the confrontation between the political executive
and the Malay Rulers over the Mahathir Government’s attempt
to amend and curtail the entrenched rights of the Malay Rulers.
On both occasions, compromises were worked out and the
Constitution as well as the institution of the monarchy proved
their resilience.
 Assault on the judiciary: The judiciary came under siege in 1988
and the then Lord President and two Supreme Court judges
were dismissed. The dismissals were severely criticised by most
independent observers. One consolation was that
constitutional procedures were, at least outwardly, complied
with. In the last five years or so, with a resurgent judiciary, some
pressure groups are active in vilifying the judiciary.

Rise of political Islam: Since the eighties, political
Islam has been in resurgence. Besides the political
significance of this phenomenon, many difficult issues
have surged up against the Constitution, among
them:
 the conflicting jurisdiction of the civil and Syariah
courts
 the interface between Article 3 (Islam as the religion of
the Federation) and Article 4 (the Constitution as the
supreme law).
 There are also difficult issues about the power of the
Syariah authorities to curtail fundamental liberties
guaranteed by Articles 5 to 13 of the Constitution.

Crossing the floor: Political hopping (defections) in Perak in
2009 led to the controversial dismissal of the Menteri Besar and
the removal of a government that had secured a clear 55% of
the popular vote. The crisis triggered an avalanche of issues
whose dust has not yet settled.
Between 2020 and 2021, party hopping caused the downfall of
the Mahathir government in 2020, the TSMY government in
2021 and the fall of 7 state governments within 2 years. An
Anti-Defection law has now been passed. Its efficacy remains to
be seen.

A re-assertive monarchy: After a period of decline during the
Mahathir era, the Conference of Rulers and the Malay Rulers
reasserting themselves on a broad range of issues e.g. the
appointment of PMs in 2020 and 2021, choice of MBs in
Terengganu, Perlis, Johor and Selangor; the refusal to sign
international treaties like ICERD and the Rome Statute; and the
refusal to declare an emergency in Sept 2020.
 During the 2021 emergency, the Istana played an activist
role in advising the summoning of parliament, the laying of
Emergency Ordinances before Parliament, and the refusal to
revoke the Ordinances without prior scrutiny by Parliament.

Battle over succession: In Kelantan an undignified royal
succession battle raged for a few months in 2010.
Federal-state relations: Federal-state relations are under severe
strain over petroleum earnings and the sale of sand. Some
States while under the opposition demanded local authority
elections. The rights of opposition-controlled states to choose
their senior civil servants is being raised. In turn, federal officers
seconded to opposition-controlled States are under intense
pressure to act with professionalism and impartiality.

Marginalisation of the Constitution: On the
broader front, constitutional supremacy in
Article 4(1) has largely operated at the
peripheries of the legal system.
 In the area of constitutional supremacy,
constitutional checks and balances, federal-
state division of powers, human rights, and
freedom of religion, the Constitution has not
become the guardian of our liberties and the
source of our freedoms.

A passive judiciary: Barring a short
period of judicial renaissance in the mid-
eighties, and since 2017, the courts have
a lacklustre performance in the matter of
enforcing constitutional supremacy,
promoting human rights, curbing
arbitrary powers and improving
transparency and accountability in
government.

 Constitutional review of legislation is a rarity.
In 65 years only 15 or so such challenges
have succeeded.
 Administrative discretion is subject to better
judicial control. But the judicial tendency up
to now was to convert constitutional law
cases to admin law cases of ultra vires and
natural justice (e.g. the Aliran case).

Gender equality under Art 8(2)
remains a distant dream
(Beatrice; Citizenship cases).
Ouster clauses abound and are
largely successful.

Decline of Parliament: The decline of Parliament in the
legislative sphere and its inability to play the role of “the grand
inquest of the nation” call for remedial action. Some reforms
were underway in 2018 but Parliament suffered a terrible
marginalisation between 2020-21 under the TSMY government.

Emergency: The continuation of a state of emergency for more
than forty-seven years (1964-2011) is surely contrary to the
spirit of the Constitution. Fortunately, the emergency was
revoked in 2012. The covid catastrophe resulted in another
emergency – this time with a sunset clause - from Jan 2021 to
Aug 2021.
Public trust: Public trust in our constitutional institutions, the
executive, the judiciary, the parliament, the Attorney-General,
the Election Commission, the Auditor-General and the police
remains low. Things were improving since 2018 but since the
“Sheraton move” in 2020, all constitutional institutions, except
the superior courts, are suffering from a trust deficit.

Corruption has become a way of life.
There is selective prosecution.
The 1MDB series of cases prove that
there is no check and balance in the
country and there is grossly unequal
treatment of persons accused of high
crimes.

CONCLUSION
 The Constitution has not yet become the chart and
compass, the sail and anchor of our nation’s endeavours. Its
imperatives have not yet become the aspirations of the
people.
 But there is hope. In the life of a nation, 65 years is not too
long a time. Constitutional literacy is emerging and the
younger generation expects a greater fidelity to the rule of
law, constitutionalism and principles of accountability and
good governance.
 What is significant is that within the majority Malay
community, voices for change are being heard. Sabah and
Sarawak are asserting themselves. There is hope at the
horizon.

 I am optimistic that as we mark sixty-five years of
independence, our laws and institutions, our values and our
views cannot remain impervious to the changes and
challenges all around us.
 It is for you all and your young human spirit to respond to
this beckoning.

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